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Sunday, March 27, 2005

Marshalling Evidence

Here’s a trivia question. Did you know the Supreme Court’s review of a law’s constitutionality is itself a violation of the Constitution? Judicial review is the power of a court to review a law or the actions of a public official and declare that law or act unconstitutional. Nowhere does the Constitution give such a power to the Supreme Court or any other court, nor has any law ever done so. This puts a whole new spin on many of the court rulings made in the last fifty years, especially those concerning subjects like contraception, abortion, homosexuality, and marriage.

The assertion above, of course, poses an interesting question. If the courts don’t have this power, why do they act as if they do? Gather round, friends. The history is instructive.

In 1800, outgoing President John Adams decided he would stack the courts with Federalists before he was forced to hand the presidency over to the newly-elected Thomas Jefferson. In the last days of his presidency, Adams and the Congress created 58 new judgeships. The outgoing secretary of state, John Marshall, signed the commissions the night before Thomas Jefferson’s inauguration, but Marshall neglected to deliver them. As soon as he was sworn in, Jefferson directed John Madison, his new secretary of state, not to deliver 17 of them. William Marbury, one of the men Adams had named to office, sued.

This is where it gets interesting. One of those 58 judgeships had gone to John Marshall, the same man who had been Adam’s secretary of state and who had sealed Marbury’s commission. That’s right. Former secretary of state John Marshall had, with the help of Congress and the outgoing President Adam’s, created himself Chief Justice of the Supreme Court under his political opponent, Thomas Jefferson, just hours before Jefferson took office. Like today’s liberal Democrats, the Federalists had lost the elections but had retired into the fortress of the courts in order to continue their political battle.

John Marshall, the model for Florida’s Judge Greer, not only failed to recuse himself from Madison v. Marbury (1803) due to his howling conflict of interest, he managed to attack his political opponent, Thomas Jefferson, and grant himself new powers without leaving an opening for Jefferson to retaliate. While judicially asinine, the ruling was politically brilliant.

Marshall ruled that Marbury had indeed been wronged, thereby tarring President Jefferson as having illegally violated Marbury’s civil rights. Then, he went on to rule section 13 of the Judiciary Act unconstitutional, thus granting himself the power of judicial review. But he ended by denying that the Supreme Court had the power to compel Jefferson to give Marbury the commission, thus giving Jefferson very little grounds to attack the decision.

The utter absurdity of judicial review was so obvious that the Supreme Court wouldn’t attempt to invalidate another Congressional law for over a half century. In Dred Scott versus Sanford (1857), the Supreme Court’s second foray into ripping apart the Constitution, Chief Justice Taney, another Judge Greer prototype, ruled that no Negro could ever become a citizen of the United States because Negroes were beings of an inferior order. He further declared that the Missouri Compromise, which prohibited slavery in some new territories, was unconstitutional and that Dred Scott could be put back into chains.

Of course, as Abraham Lincoln pointed out in the Lincoln-Douglas debates, if Taney was right and Congress had no power to prohibit slavery in new territories, there was little reason to think any state had the power to prohibit slavery at all. This was, of course, Taney’s position. He wanted slavery extended to every state in the Union so he just Marshalled the evidence.

Since then, of course, judicial review has Marshalled all manner of emanations and penumbras concerning all kinds of things that merely mortal men cannot find in the Constitution. Whether it be enslaving blacks, killing unborn children, requiring homosexual marriage, legalizing pornography, or a host of equally savory legalities, it matters not what you voted for, the courts will strike it down to get what they want. This is the history of judicial review.

Today, the courts are Marshalling their power to take it all one step further. Now they have built legal precedent for authorizing the starvation and dehydration of people they don’t like. With judges like this in office, no living will can protect you. It matters not what a piece of paper says concerning your desire not to be dehydrated or starved to death. It matters not what you say, what the law says, what the Congress says, what anyone but the judges say. You will die if it pleases them that you do.